Bombay High Court
Shaikh Altamash Shaikh Mukthtar vs The State Of Maharashtra on 12 March, 2021
Bench: S.S. Shinde, Manish Pitale
Digitally signed
Laxmikant by Laxmikant
G. Chandan
G. Date: cri.wp-1150.21.odt
Chandan 2021.03.12
15:05:49 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1150 OF 2021
Shaikh Altamash Shaikh Mukthtar ]
Age : 27, Occu : Asst.Teacher (B.M.C.) ]
Original R/o : Pimparkhed, Tq : Chalisgaon, ]
District : Jalgaon. ]
(Father of the Petitioner, Sk. Muktar Gafur, ]
Age : 62 yrs, Occup : Nil ]
Detained at Nasik Rd. Central Prison) ]..... Petitioner.
Versus
1] The State of Maharashtra, ]
Through Secretary of Home, ]
Mantralaya, Mumbai - 32, ]
]
2] Dy. Inspector General (Prison) ]
Central Zone - Aurangabad, ]
]
3] Superintendent of Jail, ]
Nasik Rd. Prison, Nasik, ]
]
(Notices to Resp. No.1-3, ]
Be served through office of the, ]
P.P. High Court, Judicature of Bombay) ]..... Respondents.
Mr. Rupesh Jaiswal for the Petitioner.
Mr. J P Yagnik, APP for the Respondent/State
CORAM : S. S. SHINDE,
MANISH PITALE, JJ
Reserved on : 10th March 2021
Pronounced on : 12th March 2021
JUDGMENT :(PER S. S. SHINDE, J)
1 Rule. Rule made returnable forthwith and heard finally with the
consent of the learned counsel for the parties.
lgc 1 of 6
cri.wp-1150.21.odt
2 By this Writ Petition the Petitioner seeks the following substantial
reliefs :-
"(B) By issuing writ of Mandamus or any other writ; order or
directions in the like nature kindly quash and set aside
the order dated 11/08/2020 passed by the Dy. Inspector
General (Prison) Central Zone Aurangabad. As well as
direct the respondent authority to release the Petitioner
on furlough OR Parole leave as per the Act; or pass an
appropriate order for the purpose.
3 The present Writ Petition is filed by the son of accused who has
been convicted and sentenced to undergo imprisonment for life for the
offences punishable under Section 302 of the Indian Penal Code by the
Judgment and order dated 30/06/1998 passed by the learned Additional
Sessions Judge, Jalgaon. Being aggrieved, the convict preferred criminal
appeal to this High Court Bench at Aurangabad which came to be dismissed by
this Court on 12/07/2005.
4 It is submitted by the learned counsel appearing for the Petitioner
that the Petitioner's father applied for furlough on the ground of sad demise of
sister of the Petitioner namely Shamim Abdul Latif Shaikh who died on
28/09/2020, and the jail authority ought not to have rejected the furlough
application of the father of the Petitioner, as the furlough is matter of right of
lgc 2 of 6
cri.wp-1150.21.odt
convict. It is also submitted that the order passed by the 2 nd Respondent is
contrary to the provision of law and against the principle of natural justice. It
is also submitted that the father of the Petitioner has already completed more
than 8 years sentence in the jail. The learned counsel for the Petitioner submits
that earlier the father of the Petitioner got released on furlough leave in the
year 2007 and there was no complaint against him. He lastly submitted that
considering the present scenario of Covid-19 Pandemic, the jail authority ought
to have considered the application of the Petitioner's father. He, therefore,
prays that the writ petition may be allowed.
5 On the other hand the learned APP appearing for the Respondent/
State submits that the convict has been convicted for the offence punishable
under Section 302 and sentenced to suffer life imprisonment. He further
submitted that the reasons recorded by the 2 nd Respondent in rejecting the
application for furlough are based on office record, keeping in view the past
conduct of the convict when he was released earlier on furlough, he had
surrendered belatedly by 3949 days. He, therefore, prays that the writ petition
may be rejected.
6 We have given due consideration to the rival submissions of the
learned counsel appearing for the parties. With their able assistance we have
perused the pleadings, grounds taken in the Petition and annexures thereto.
lgc 3 of 6
cri.wp-1150.21.odt
7 It is an undisputed fact that the convict i.e. the Petitioner's father
is an convict, and the learned Additional Sessions Judge, Jalgaon convicted
him for the offence punishable under Section 302 and sentenced him to suffer
life imprisonment. The learned APP for the Respondent/State invited our
attention to impugned order passed by the 2 nd Respondent. We have perused
the reasons recorded in the impugned order. While rejecting the prayer of the
convict to release him on furlough, the 2nd Repondent has considered the police
report, which is adverse. The 2nd Respondent has also taken into consideration
the police report wherein it is mentioned that the offence is registered against
the convict under Section 224 of the Indian Penal Code as he was reported late
when earlier he was released on furlough. It is also observed in the impugned
order that if the convict is released on furlough, there could be quarrel
between the convict and the prosecution witnesses. The convict is in the habit
of reporting late to the jail authority as and when he was released on furlough/
parole. One of the reasons given by the 2 nd Respondent while rejecting the
application for furlough is that, there is no recommendation from the Jail
Superintendent for granting furlough to the convict. Therefore considering
the past history of the convict, the 2 nd Respondent has rejected the application
of the convict for furlough in terms of Rule 4(4), 4(10) of the Prisons (Bombay
Furlough and Parole) Rules, 1959.
lgc 4 of 6
cri.wp-1150.21.odt
8 Rule 4(4), and 4(10) which forms the basis of rejection of the
application/application filed by the father of the Petitioner reads thus :-
"4 Eligibility for furlough :-
All Indian prisoners except from following categories
whose annual conduct reports are good shall be eligible
for furlough :-
(1) to (3) .........
(4) Prisoners whose release is not recommended in Police
Commissionerate area by the Assistant Commissioner of
Police and elsewhere, by the Deputy Superintendent of
Police on the grounds of public peace and tranquility;
(5) to (9) .........
(10) Prisoners who have at any time escaped or attempted to
escape from lawful custody or have defaulted in any way
in surrendering themselves at the appropriate time after
release on parole or furlough;
(11) to (21) ........."
9 The father of the Petitioner is a convict and convicted for the
offence punishable under Section 302 of the Indian Penal Code and sentenced
to suffer life imprisonment. He was in habit of surrendering belatedly to the
Jail Authority, when he was released on furlough/parole. We, therefore, find
substance in the contention raised by the learned APP that if the convict is
lgc 5 of 6
cri.wp-1150.21.odt
released on furlough, there are chances of his absconding and/or surrendering
him belatedly. We are of the considered view that the reasons recorded by the
the 2nd Respondent while rejecting of the convict for furlough are legally
sustainable.
10 In view of the aforesaid Rules 4(4), and 4(10) of the Prisons
(Bombay Furlough and Parole) Rules, 1959 and in view of the afore-stated
reasons, the Petitioner's father is not eligible/entitled for the release on
furlough. In the past the father of the Petitioner has committed default by way
of surrendering at the appropriate time after release on furlough/parole. The
2nd Respondent is, therefore, right in holding that the convict is likely to jump
furlough. The police report is also adverse to the convict.
11 For the reasons recorded aforesaid, we are not inclined to
entertain the Writ Petition. There is no merit in the writ petition. Hence the
writ petition stands rejected. Accordingly Rule stands discharged. The
Petitioner's father may apply for furlough in future after six months.
[MANISH PITALE, J] [S. S. SHINDE , J]
lgc 6 of 6
